Global health governance and the contentious politics of human rights: mainstreaming the right to health for public health advancement.

AuthorMeier, Benjamin Mason
  1. FOUNDATION OF WHO, HUMAN RIGHTS FRAMEWORKS, AND INTERNATIONAL SYSTEMS OF COORDINATION IN PUBLIC HEALTH AND HUMAN RIGHTS II. THE BIRTH, DEATH, AND RESURRECTION OF HUMAN RIGHTS IN WHO PROGRAMMING A. WHO Influences Human Rights (1948-1952)--The Draft International Covenant on Human Rights B. WHO Neglects Human Rights (1953-1973)--The International Treaty Framework Expands Without WHO C. WHO Rediscovers Human Rights (1973-1980)--The Declaration of Alma-Ata as a Rights-Based Approach to Health III. LEGACIES OF WHO NEGLECT IV. CONCLUSION This Article traces the political history leading up to the World Health Organization's (WHO's) invocation of human rights as a normative framework for global health governance. With both the Universal Declaration of Human Rights (UDHR) and WHO coming into existence in 1948, there was great initial promise that these two institutions would complement each other, with WHO--like the other specialized agencies of the United Nations (U.N.)--supporting human rights through all its activities. Yet in spite of this promise and early WHO support for advancing a human rights basis for its work, WHO intentionally neglected human rights discourse during crucial years in the development and implementation of the right to health, projecting itself as a technical organization above "legal rights."

    Where WHO neglected human rights, it did so to the detriment of public health. After twenty years shunning human rights discourse, WHO's public health leadership came to see human rights principles as a moral foundation upon which to frame WHO's Health for All strategy for primary health care. But it was too late. WHO's failure to shape the evolution of international human rights law--specifically, as laid out in Table 1 below, its actions in rights development and programmatic implementation during the transition from Article 25 of the 1948 UDHR to Article 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR)--had already set into motion a course for health rights

    that would prove fatal to the goals of primary health care laid out in the 1978 Declaration of Alma-Ata.

    This Article chronicles the evolution of a human right to health, focusing on WHO's role in developing and implementing these legal obligations. Through legal analysis of treaty language and historical analysis of treaty travaux preparatoires (official preparatory documents)--complemented by archival research examining the internal communications of both the U.N. and WHO--this research examines WHO's contributions to (and, in many cases, negligence of) the evolution of the right to health, analyzing how WHO has mediated the translation of health discourse into health rights. While other studies have examined the treaty language of the right to health, (1) no previous study has examined the underlying organizational discourses that developed the basis for international treaty negotiations. Only through an analysis of these institutional communications in global health governance does it become possible to understand the seminal competing norms that culminated in the international legal language of the human right to health, highlighting the institutions underlying the successes and failures of those norms in achieving state obligations for health.

  2. FOUNDATION OF WHO, HUMAN RIGHTS FRAMEWORKS, AND INTERNATIONAL SYSTEMS OF COORDINATION IN PUBLIC HEALTH AND HUMAN RIGHTS

    The codification of health as a human right begins, as with all contemporary human rights, in the context of World War II. Heeding a growing call for individual freedom from the tyranny of the state, U.S. President Franklin Delano Roosevelt announced to the world on January 6, 1941 that the post-War era would be founded upon four "essential human freedoms": freedom of speech, freedom of religion, freedom from fear, and freedom from want. (2) It is the final of these "Four Freedoms," freedom from want, that introduced a state obligation to provide for the health of its peoples. As Roosevelt conceived of it, this freedom from want would be couched in the language of liberty, with the understanding that "[n]ecessitous men are not freemen." (3) These budding rights, developed by the Allied States during the course of World War II, (4) would become the basis for a new system of international law, with social and economic rights serving to prevent deprivations like those that had taken place during the Great Depression and War that followed. (5) Rather than simply appealing to informal notions of religious principle or morality, these binding human rights obligations on states would provide a formal basis for assessing and adjudicating principles of justice under law. (6)

    The Charter of the United Nations (U.N. Charter), signed on June 26, 1945, became the first major international legal document to recognize the concept of human rights. Although the U.N. Charter did not enumerate or elaborate human rights, the subject was raised as one of the four principal purposes of this nascent world body. (7) Operating through its Economic and Social Council (ECOSOC), the U.N. would seek to "make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all." (8) During the initial drafting of the U.N. Charter, however, states did not mention health, either as a goal of the organization or as a human right. In fact, original drafts do not include any mention of health. (9) But for the belated efforts of the Brazilian and Chinese delegations to the 1945 U.N. San Francisco Conference on International Organization (10)--jointly proposing the word "health" as a matter of study for the General Assembly (Art. 13), finding international health cooperation to be among the purposes of ECOSOC (Art. 55), and advocating for the establishment of an international health organization (Art. 57) (11)--health would have received no mention in the creation of the U.N. (12) Notwithstanding this promise of international health cooperation in the U.N. Charter, it fell to the subsequent human rights treaties to codify a human right to health in international law.

    In doing so, the U.N. proclaimed its UDHR on December 10, 1948, enacting through it "a common standard of achievement for all peoples and all nations." (13) Defining a collective set of interrelated social welfare rights, the emerging U.N. framed a right to health in the UDHR by which:

    Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (14) In preparing this right to a standard of living adequate for health, there was widespread agreement that a human right to health included both the fulfillment of necessary medical care and the realization of underlying determinants of health--explicitly including within it public health obligations for food and nutrition, clothing and housing, and social services." This expansive vision of public health systems was in accordance with (1) the expansion of post-War European welfare policy, founded on the notion that "social security" requires health to be cared for along comprehensive lines; (16) (2) the early development of human rights in the Americas, encompassing "the right to the preservation of [] health through sanitary and social measures relating to food, clothing, housing and medical care;" (17) and (3) the recent amendments to the Soviet Constitution, which established protections of medical care and "maintenance in old age and also in case of sickness or disability." (18) While the resulting language of this right was less focused than many had hoped, delegates expected that this broad declaratory language on underlying determinants of health would soon be elaborated by specific legal obligations.

    With adoption of the UDHR still underway, the rapid drafting and adoption of the Constitution of the World Health Organization (WHO Constitution) would make it the first international treaty to find a unique human right to health and would form the inspirational backdrop for the development of the UDHR's human rights language on health. (19) During the June-July 1946 International Health Conference, delegates adopted the proposed WHO Constitution, thereby establishing an Interim Commission to subsume within WHO all of the prior obligations of the Health Organization of the League of Nations, the Office International d'Hygiene Publique (OIHP), and the Health Division of the United Nations Relief and Rehabilitation Administration (UNRRA). (20) To create this sweeping global health policy architecture, the International Health Conference established three organs by which to realize the goals of the new organization: (1) the World Health Assembly, the legislative policy-making body of WHO, made up of representatives from each member state; (2) the Executive Board, an executive program-developing subset of the World Health Assembly; and (3) the Secretariat, the body that carries out the decisions of the aforementioned organs through an elected Director-General and appointed staff of WHO. Recognizing a necessity to facilitate international cooperation through autonomous global health governance, (21) representatives of sixty-one states signed the WHO Constitution on July 22, 1946, after which it remained open for signature until it came into force on April 7, 1948. The first World Health Assembly, with fifty-four member states, met in Geneva in June 1948 to establish WHO as a specialized agency of the U.N. and to lay out WHO's mandate, programs, and priorities for realizing global public health. (22)

    In establishing the contours of a human right to health under the WHO Constitution, a document far more...

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